Constitutional Law Prof Blog

Court Rejects Bagram Detainees' Habeas Claims

Judge John D. Bates (D.D.C.) dismissed the habeas corpus claims of detainees at Bagram Airfield (Afghanistan) last week in Al Maqaleh v. Gates.  The ruling is the latest chapter in the detainees' quest to challenge their detentions by way of habeas in federal court, just as Guantanamo detainees won the right to challenge their detention by way of habeas in Boumediene v. Bush.  The detainees may appeal, but their chances seem slim, at best, especially given the history of the case.

Recall that Judge Bates originally ruled that Bagram detainees enjoyed the privilege of habeas in 2009.  Judge Bates wrote that with technology the courts could hear Bagram detainees' habeas claims just as easily as they could hear Guananamo detainees' claims, and that habeas claims wouldn't unduly disrupt the government's prosecution of the war.  But the D.C. Circuit reversed, saying that Bagram was fundamentally different than Guantanamo.  The D.C. Circuit ruled that Bagram was in an active war zone, that the government didn't have the kind of control over Bagram that it had over Guantanamo, and that habeas claims risked interfering with the government's prosecution of the war.

This latest case arose when the same Bagram detainees argued that certain developments at Bagram undermined the D.C. Circuit's ruling.  In particular, the Bagram detainees argued that new evidence showed that the government intends to stay at Bagram indefinitely; that recent criminal trials at Bagram showed that practical obstacles to litigation are far less serious than the D.C. Circuit believed; that the government was attempting to avoid habeas jurisdiction by detaining prisoners at Bagram; and that procedures used to determine the detainees' status are unacceptable.

Judge Bates rejected these claims, in short disagreeing with the detainees' interpretation of their new evidence, or saying that their "new" evidence wasn't new at all--that it was fully available to the D.C. Circuit when the D.C. Circuit issued its earlier ruling.

Judge Bates also rejected the habeas claim in a companion case brought by a minor, Hamidullah v. Obama.  Hamidullah argued that his age set him apart from the others, because habeas is "somewhat more robust" for minors.  Judge Bates ruled that he failed to support this argument.

The case likely marks the end of the line for Bagram detainees.  Even if they appeal, given the D.C. Circuit's ruling and Judge Bates's most recent ruling, they're likely to lose.

SDS

DOJ Moves to Dismiss Fast and Furious Suit

Earlier this week the Justice Department filed its motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder.  The motion was expected, and the arguments are not a surprise.

Recall that the Committee brought the case seeking a declaration that the administration's assertion of executive privilege was without merit and that its failure to turn over certain documents to the Committee in its investigation of the "Fast and Furious" program was without justification.  The Committee seeks an order requiring the government to turn over these documents.

Recall also that since the Committee filed its suit, the DOJ Inspector General issued its report into the program and testified before Congress on it.

DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward.  In short, DOJ says that the political branches should work this out.  According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.

DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action.  It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction.  In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331.  (Congress asserted no claim for monetary damages in that case.)  Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps.  (Otherwise 1365 would be a nullity.)  If so, the court lacks jurisdiction over the House Committee's suit.  Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.

Now we wait for the Committee's response.

SDS

D.C. Circuit Vacates Hamdan's Conviction for "Material Support for Terrorism"

A unanimous three-judge panel of the D.C. Circuit today in Hamdan v. U.S. reversed the judgment of the Court of Military Commission Review and directed that Salim Ahmed Hamdan's conviction for "material support for terrorism" be vacated.  The ruling clears Hamdan, who already served time (66 months minus credit for time already served at Guantanamo) and has been released, of this conviction.

Hamdan here is the same Hamdan who successfully challenged the government's authority to try him by military commission in Hamdan v. Rumsfeld.  After Congress passed the Military Commissions Act of 2006 and expanded the list of crimes for which a person could be tried by military commission, the government re-charged Hamdan with conspiracy and material support for terrorism.  Hamdan was acquitted of conspiracy, but convicted of five specifications of material support for terrorism.  He was sentenced to 66 months, but credited for served for most of that sentence, and released in Yemen in 2008.

The D.C. Circuit ruled that Hamdan's case was not moot (even though he already served time and was released in 2008 in Yemen) and that the MCA, which specifically made "material support for terrorism" a crime triable in a military commission, did not apply (in order to avoid ex post facto problems).  This left the court to determine whether the government had authority to try Hamdan for "material support for terrorism" under 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war." 

In short, the court ruled that the international law of war at the time did not proscribe "material support for terrorism" and that the government therefore lacked authority to try Hamdan for that crime by military commission.  The court wrote that

neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime.  Perhaps most telling, before this case, no person has ever been tried by an international-law war crimes tribunal for material support of terrorism.

Op. at 25.  The court said that international law leaves "material support for terrorism" to domestic law (even if international law does establish some other forms of terrorism as war crimes), and domestic law didn't outlaw it until the 2006 MCA--after Hamdan's actions.

Judge Ginsburg joined the court's opinion but wrote separately to "explain the unfortunate state of . . . precedent" that saved the case from mootness.

Only Judge Kavanaugh, the author of the court's opinion, joined footnote 6, which explained why Congress had authority to make "material support for terrorism" a war crime, and why it is appropriate to address that question in the first place.  Judge Kavanaugh wrote that Congress's war powers are not confined by international law, and therefore even if international law did not define "material support for terrorism" as a war crime, Congress could.

SDS

Daily Read: Bowden on Obama on binLaden's Possible Article III Trial

In the just-published book The Finish: The Killing of Osama bin Laden by Mark Bowden apparently argues that

in the unlikely event that bin Laden surrendered, Obama saw an opportunity to resurrect the idea of a criminal trial, which Attorney General Eric Holder had planned for Khalid Sheikh Mohammed. This time, the president tells Bowden, he was prepared to bring bin Laden back and put him on trial in a federal court. “We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantánamo, and to not try him, and Article III.” Obama continues: “I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.”

Obama's representations, given in an interview with Bowden, present an interesting - - - and perhaps unlikely - - - counterfactual.  Over at Lawfare, Wells Bennett observes that "it seems a safe bet that congressional resistance to a civilian prosecution would have been extreme, at least as heated as the resistance to the civilian prosecution of the 9/11 co-conspirators."

RR

Eighth Circuit Rejects ACA Challenge for Lack of Standing

The Eighth Circuit ruled in Kinder v. Geithner that a private individual and Missouri's Lieutenant Governor (acting in his personal capacity) lacked standing to challenge the universal coverage provision of the Affordable Care Act.

The Supreme Court, of course, settled the issue last summer.  But that didn't stop the plaintiffs here (who filed before the Court ruled)--even if they couldn't identify the relief they sought (after the Court ruled).  The Eighth Circuit side-stepped these problems, though, and ruled instead that the plaintiffs lacked standing.  The ruling means that the case is dismissed.

One plaintiff, Samantha Hill, wrote in her complaint that the ACA forced her to purchase a health plan that she didn't want.  In particular, Hill claimed that she wanted to buy only a high-deductible, "catastrophic" health plan, but that the ACA allowed a person to buy such a plan only if that person were under 30 years old and certified that his or her premiums amounted to more than eight percent of his or her household income. 

The court ruled that Hill misread the statute.  The ACA allows a person under 30 or a person whose premiums amount to more than eight percent of household income to purchase a catastrophic plan.  Hill was under 30, and the Act therefore allowed her to buy a catastrophic plan.  No injury.

(The court rejected Hill's several creative readings of her own complaint to get around this result.  In the end, it seems, one of two things happened: somebody mis-read an "and" for an "or" in the ACA; or somebody wrote a pretty sloppy complaint.)

The court rejected LG Morris's claim, because he never said he'd be affected by the universal coverage requirement: he's already insured.  No injury.

If the case weren't dismissed for lack of standing, it obviously would have been dismissed on the merits, after the Court's ruling in NFIB v. Sebelius.

SDS

High Court Skeptical of Nigerians' Human Rights Claim in U.S. Courts

The Supreme Court heard oral arguments Monday in Kiobel v. Royal Dutch Petroleum Co., the case testing whether the Alien Tort Statute applies to a foreign corporation's human rights violations overseas.  The Court ordered reargument after it first heard the case last Term, on the question whether the ATS applies to corporations.  The new question, argued Monday, is whether the ATS applies at all to actions that have no direct connection to the U.S.  (We previously posted on the case, along with the Torture Victim Protection Act case from last Term, Mohamad v. Palestinian Authority, here.)

The case arose out of Nigerians' claims that defendant corporations committed human rights abuses against them in Nigeria (aiding the Nigerian government).  The plaintiffs sought and gained asylum in the U.S., so sued in U.S. courts, under the ATS.

Chief Justice Roberts and Justices Scalia, Kennedy, and Alito all expressed skepticism that the ATS should apply to overseas abuses by non-U.S. corporations.  Chief Justice Roberts and Justice Alito both asked whether U.K. or Dutch courts might be a better forum for the case, given that the defendants are U.K. and Dutch companies (with some connection to those jurisdictions).  Justices Scalia and Kennedy both worried early in the arguments that the plaintiffs' position could mean that U.S. corporations could face suits anywhere in the world, under another country's assertion of universal jurisdiction--thus, for example, allowing a foreign court to determine whether a U.S. corporation violated international law in the U.S.  The Justices also worried about the extraterritorial application of U.S. law--and whether the ATS wouldn't improperly insert U.S. law into other jurisdictions in violation of the presumtion against extraterritorial application.

Paul Hoffman, counsel for the plaintiffs had an answer to these concerns: the law of personal jurisdiction, forum non conveniens, and political question would act as a backstop to ATS-based universal jurisdiction in U.S. courts, when the case didn't belong there.  He also seemed to concede that some kind of exhaustion requirement (in which plaintiffs would have to exhaust available foreign remedies before proceeding in U.S. courts) or a rule that U.S. courts could take jurisdiction only when foreign courts couldn't offer fair justice could be reasonable checks on jurisdiction in the U.S. courts.

Justices Ginsburg, Sotomayor, and Kagan seemed to search more for a practical, less categorical solution, by exploring defenses of personal jurisdiction and exhaustion, for example--the back-end fixes that Hoffman seemed to accept.  Justice Breyer seemed most entrenched in favor of ATS jurisdiction, even at one point illustrating his view of the statute's reach by comparing Hitler's atrocities to the early acts of piracy that the ATS was designed to remedy.

There was one particular sticking point: Sosa v. Alvarez-Machain, the Court's 2004 foray into the ATS, where a Mexican sued other Mexicans for events that occured in Mexico, although there was a key U.S. connection: the DEA set the whole affair in motion.  The Court in that case held that the plaintiff could not recover damages under the ATS, but it also suggested that the ATS could reach a case like Kiobel.  Thus the question: Must the Court overturn Sosa in order to rule for the defendant?  Kathleen Kennedy, counsel for the defendants, argued no: Sosa is distinguishable, and the Court said only that there were no sufficiently universal and specific international norms to support an ATS claim.  But Justice Kagan argued yes, noting that Sosa put its stamp of approval on the reasoning in Filartiga, the pathbreaking case in which the Second Circuit applied the ATS against an alien for acts outside the U.S.  (Complicating things yet further, Congress later enacted the Torture Victim Protection Act, authorizing just the kind of suit in Filartiga.  The defendants argued here that the TVPA means that the Court doesn't need to address Filartiga, because "Filartiga is taken care of entirely by the proper body, which is Congress.")

The Justices also explored ways to consider the government's interest in foreign affairs--a point pressed by SG Verrilli, but only narrowly: The government's position is "that there shouldn't be a cause of action to address the extraterritorial conduct of a foreign corporation that is alleged to have aided and abetted the acts of a foreign sovereign."

In all, the case doesn't look good for the plaintiffs.  Even if the Court rules that the ATS can apply to an alien acting in a foreign country--that is, even if it doesn't adopt a categorical rule barring an ATS claim in that situation--it seems likely to rule that U.S. courts should punt until the plaintiff exhausts all reasonable and effective foreign remedies first, or that the government's foreign affairs interests trump the plaintiff's claims, or both.  The Court could also send the case back for a (re)consideration of personal jurisdiction.  Any one of these could doom the plaintiffs' case.  (It's not clear exactly how exhaustion and personal jurisdiction would play out: it doesn't seem that those issues have been seriously litigated with respect to all defendants.)  Moreover, the Court could rule that the ATS doesn't apply to corporations.  That, too, would doom the plaintiff's case. 

SDS

Another Catholic School Challenge to Women's Health Regs Dismissed

Judge Ellen Segal Huvelle (D.D.C.) dismissed Wheaton College's case against Secretary Sebelius over federal regs under the ACA that require covered employers to provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing.

The case is the second in as many months dismissed for lack of standing and ripeness in the D.C. District.  We posted on the earlier case, Belmont Abbey College v. Sebelius, here.  This case, by a different judge, now makes it even less likely that any of these suits will succeed.

(There are two other district court rulings.  In one, State of Nebraska ex rel. Bruning v. Sebelius, Judge Warren Urbom (D. Ne.) dismissed claims by religious organizations, individuals, and the state itself for lack of standing--the same ruling as in Belmont Abbey and Wheaton College, but also including individual and state plaintiffs.  In another, Newland v. Sebelius, Judge John Kane (D. Co.) granted a preliminary injunction to a private corporation, not a religious organization covered under the safe harbor.  Newland is different than the other cases, because it was brought by a private corporation with no protection under the safe harbor.)

The most recent case, Wheaton College v. Sebelius, involved the same and very similar issues as those in Belmont Abbey--that is, whether the government's "safe harbor" and commitment to reconsider its regs left the plaintiff without standing and the case without ripeness.  Like Judge Boasberg in Belmont Abbey, Judge Huvelle said yes on both counts.

Judge Huvelle rejected Wheaton College's argument that it might be subject to litigation as too speculative.  She also rejected Wheaton College's argument that it might be subject to a new government position at any time--just as the D.C. Circuit ruled in Chamber of Commerce v. FEC that the Chamber of Commerce might have been subject to an FEC enforcement proceeding at any time, even with an FEC evenly split between Democrats and Republicans.  Judge Huvelle wrote that Chamber of Commerce was different, because here the government's commitment not to act against employers that qualify for the safe harbor (including Wheaton College) "was the product of sustained agency and public deliberation, and it represents a final decision, that has been reiterated twice."  Op. at 11.

SDS

Eleventh Circuit: Settlement Offer Without Judgment Does Not Moot Case

The Eleventh Circuit ruled in Zinni v. ER Solutions, Inc. that the defendants' settlement offer for the full amount available under federal law, but not including an offer of a judgment, did not moot the plaintiffs' Fair Debt Collection Practices Act case.

The plaintiffs sued defendants in federal court for harassing debt collection calls in violation of the FDCPA and sought monetary damages and a judgment against the defendants.  The defendants offered $1,001 to each plaintiff--one dollar more than the maximum damage award under the FDCPA--plus unspecified attorneys' fees and costs.  But they didn't offer a judgment against them.

The Eleventh Circuit ruled that the offer didn't moot the plaintiffs' case.  The court said that the defendants' offer wasn't the full relief requested by the plaintiffs (because the plaintiffs also asked for a judgment), and that a settlement for monetary damages without a judgment could simply lead to more litigation--for state law breach-of-contract--while at the same time divesting the federal court of jurisdiction over the claim.  In other words: If the court dismissed the case as moot, the plaintiffs had only the defendants' promise to pay, and no means of enforcement in the federal courts.  (With no judgment, the federal court where the plaintiffs brought the case would lack jurisdiction to enforcement a settlement.  The plaintiffs could only enforce it in state court, on a breach-of-contract claim.)

The court distinguished two Seventh Circuit cases that held that an offer of full settlement did moot the claims, because the offer in those cases included a court-enforceable judgment.

The ruling allows the case to move forward, presumably on the issue of the judgment alone (assuming that the plaintiffs accept the offer of monetary damages).

SDS

ICE Officers Sue to Halt DHS Deferred Action

A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens.  (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.)  The administration has argued that the program is a valid exercise of prosecutorial discretion.  We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).

It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government.  The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution.  It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them.  There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations. 

The officers state five causes of action.  First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted."  Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law.  Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'"  Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress.  Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.

Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future.  But maybe it's not supposed to.  The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.

SDS

D.C. Circuit: No Standing to Challenge EPA Fuel Regs

A sharply divided three-judge panel of the D.C. Circuit ruled on Friday in Grocery Manufacturers Ass'n v. EPA that three trade associations lacked standing to challenge EPA's "partial" waivers allowing the introduction of a new ethanol biofuel.

The ruling means that EPA's waivers stand, allowing the introduction of an unleaded gasoline blend containing 15 percent ethanol for use in model-year 2001 and newer light-duty motor vehicles and engines.  The case also deepens a circuit split on the question whether prudential standing is jurisdictional (and therefore reviewable even if a party doesn't challenge it).  The panel majority said yes--a holding that seems in tension with the direction of both the Supreme Court and the circuit itself. 

Between these two issues--the underlying issue of EPA's authority to issue waivers for a new biofuel, and the issue whether prudential standing is jurisdictional--this case may make a good candidate for Supreme Court review.

The case arose out EPA's "partial" waivers of the Clean Air Act provision that prohibits manufacturers from introducing into commerce "any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive" used in the federal emissions certification of those vehicles.  42 U.S.C. Sec. 7545(f)(1)(B).  The CAA allows the EPA to grant a waiver, however, if it "determines that the applicant has established that such fuel or fuel additive or a specific concentration thereof, and the emission products of such fuel or fuel additive or specified concentration thereof, will not cause or contribute to a failure of any emission control device or system . . . to achieve compliance by the vehicle or engine with the emission standards with respect to which it has been certified."  42 U.S.C. Sec. 7545(f)(4) (emphasis added).

The waivers allowed manufacturers to introduce a new biofuel, E15 (an unleaded gasoline blend containing 15 percent ethanol), for light-duty motor vehicles and engines with a model year 2001 and newer.  (E10, a different ethanol blend with just 10 percent ethanol, is already on the market.  Put simply: E15 uses more corn.)

The plaintiffs, three different trade associations, sued, arguing, among other things, that EPA lacked authority to grant a "partial" waiver.  (See (f)(4), above, and the phrase "any emission control device or system.")  An intervenor argued that the plaintiffs lacked standing.

(Note that the government challenged neither Article III standing nor prudential standing.  Under well settled law, the court can still address Article III standing, because it's jurisdictional.  But the panel split on whether the court could address prudential standing: the majority wrote that it could (because it's jurisdictional); the dissent wrote that it could not (because it's not jurisdictional).  (Judge Tatel wrote that circuit precedent required the court to rule that it's jurisdictional, even though the weight of authority seems to be going the other way.)

Chief Judge Sentelle and Judge Tatel agreed that two of the three trade associations lacked Article III standing, because their claimed harms were too far removed from the EPA's partial waivers.  (The engine-products group claimed that EPA waivers would cause E15 to enter the market and cause damage to certain engines and create liability for those engine manufacturers.  The court held that this was neither "concrete and particularized" nor "actual or imminent."  The petroleum group claimed that the waivers would require refiners and importers to introduce E15 into commerce (because there'd be no other way to meet increasing renewable fuel requirements under federal law) and downstream firms to accommodate E15.  The court said that the waivers caused neither of these results.)

They also agreed that the third plaintiff, the food producers, lacked prudential standing, because their interests weren't within the zone of interests to be protected or regulated by the statute.  They said that the food producers, which argued that the waiver would cause corn prices to rise, drew on an interest protected by a different statute, not the CAA.

Judge Kavanaugh argued in dissent that both the food producers and the petroleum group had Article III standing, that prudential standing was non-jurisdictional, and that even if prudential standing were jurisdictional both had it. 

(Judge Tatel agreed that the food producers had Article III standing, but because Judge Tatel also agreed with Chief Judge Sentelle that they lacked prudential standing, the case is dismissed.)

Judge Kavanaugh went on to argue that the EPA lacked authority to grant the partial waivers.

SDS

Court Dismisses Operation Flex Challenge on State Secrets Privilege

Judge Cormac J. Carney (C.D. Cal.) this week dismissed a case brought by several Muslims challenging an FBI surveillance program on the government's assertion of the state secrets privilege.  (Thanks to emptywheel.net for links to the opinions below.)

The ruling, along with a companion ruling on the plaintiffs' FISA claim, terminates all but a sliver of the case.  It also illustrates what a powerful weapon the state secrets privilege can be--protecting an indiscriminate surveillance program that, as described by the plaintiffs, even the judge called "disturbing."  At the end of the day, Judge Carney dismissed the entire case (aside from the FISA claim, discussed below and dismissed in part on other grounds) on the government's own claim, based on a sealed declaration, that its defense would necessarily reveal state secrets.

The rulings in Fazaga v. FBI arose out of the plaintiffs' challenge to the FBI's "Operation Flex" program.  According to the complaint, the FBI engaged a civilian, Craig Monteilh, to conduct indiscriminate surveillance on Muslims in Southern California.  The surveillance resulted in hundreds of hours of video and thousands of hours of audio recordings from the mosques, homes, businesses, and associations of hundreds of Muslims.  But it didn't result in a single criminal charge.

The plaintiffs sued the FBI and its officers under several constitutional and statutory theories, including FISA.  The government moved to dismiss, arguing that its defense necessarily required disclosure of information that would harm national security--that is, state secrets--and the court agreed.  Judge Carney explained:

Here, Plaintiffs' claims are predicated on their core allegation that Defendants engaged in an indiscriminate investigation, surveillance, and collection of information of Plaintiffs and the putative class because they are Muslim. . . .  [T]he Court is persuaded that privileged information provides essential evidence for Defendants' full and effective defense against Plaintiffs' claims--namely, showing that Defendants' purported "dragnet" investigations were not indiscriminate schemes to target Muslims, but were properly predicated and focused. . . .  [T]he Court is [also] convinced that the privileged and nonprivileged information are inextricably intertwined, such that litigating the instant case to judgment on the merits would present an unacceptable risk of disclosing state secrets.

Op. at 31, 33 (emphasis in original).

Judge Carney's ruling is thorough and thoughtful--explaining the Totten bar and the Reynolds privilege; navigating between and synthesizing recent rulings coming out of the Ninth Circuit (Jeppesen Dataplan) and the Fourth  Circuit (El-Masri); reviewing the government's confidential supporting affidavit and memorandum; checking the government's assertion against the government's own standards and processes for asserting the privilege; and explaining in broad terms just what the kind of information might be disclosed in the litigation.  In other words, the ruling seems modest, balanced, and reasonable.

But still there's this: Judge Carney dismissed the entire case because the government's defense would have required revealing information that would harm national security, based only on the government's own say so.  The dramatic result creates a perverse incentive for the government to overreach in its surveillance programs, with the knowledge and comfort that it can successfully shut down an entire case simply by showing that any defense of it would reveal state secrets.  

In the companion ruling, Judge Carney dismissed the plaintiffs' FISA claim against the government, but not the individual defendants.  Judge Carney relied on the Ninth Circuit's recent ruling that FISA's civil damages provision did not unequivocally waive sovereign immunity.  But Judge Carney also said that nothing in the civil damages provision stops the suit against the individual defendants.  And the government didn't assert the state secrets privilege over the FISA part of the case.  

As a result, the plaintiffs' FISA claim against the individual defendants appears to go on.  We might expect a government assertion of the state secrets privilege over this remaining part of the case now.  If so, it could face a hurdle: The Northern District of California ruled in In re Nat'l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1120 (2008) that FISA preempts the state secrets privilege with respect to a FISA claim.  While the court cited and discussed the case (in rehearsing the plaintiffs' argument), it's not clear that it would agree with it, or not.

SDS

House Committee Sues AG Holder for Fast and Furious Docs

The House Committee on Oversight and Government Reform filed its anticipated complaint today in the United States District Court for the District of Columbia against Attorney General Eric Holder, seeking a declaration that AG Holder's assertion of executive privilege is without merit and that his failure to turn over certain documents to the Committee was without justification, and requiring AG Holder to turn over certain "obstruction" documents.

We covered the Committee's vote to holder AG Holder in contempt here; we covered the administration's assertion of executive privilege here; and we covered the House authorization to file suit here.

The complaint seeks a mere subset of the larger body of documents originally sought by the Committee--the so-called "Obstruction Component" documents, relating to DOJ's alleged obstruction of the Committee's investigation into the Fast and Furious program.  (The Committee does not seek other documents covered in its earlier subpoena--the "Operations Component" documents, related to the operations of the program--although it maintains its right to seek and to receive those documents.)  The Committee explains, in paragraph 62 of the complaint:

The Department's and the Attorney General's response to the Committee's investigation has been woefully inadequate in every respect.  However, notwithstanding their lack of cooperation, the Committee has managed to obtain sufficient facts--principally through the aid of DOJ whistleblowers--to begin reporting to the American people on the Operations Component of its investigation.  Accordingly, although the Committee has a legal and constitutional right to obtain from the Attorney General all documents responsible to the Holder Subpoena not already produced, the Committee chooses in this action to seek only a limited subset of such responsive but unproduced documents, namely, those documents that are relevant to the Obstruction Component of the Committee's investigation which the Committee cannot obtain from any other source.  To that end, the Committee here seeks to compel the Attorney General to produce those documents dated or that were created after February 4, 2011, that are responsive to Categories 1, 4, 5, and 10 of the Holder Subpoena [attached to the complaint].  In the Committee's judgment, this limited subset of responsive documents--referred to herein as the "Post-February 4 Subset"--includes or constitutes the documents most likely to be relevant to the Obstruction Component of the Committee's investigation and, when produced, most likely to enable the Committee to complete its investigation.

Here's what the Committee thinks of the administration's executive privilege claim:

The principal legal issue presented here is whether the Attorney General may withhold that limited subset on the basis of "Executive privilege" where there has been no suggestion that the documents at issue implicate or otherwise involve any advice to the President, and where the Department's actions do not involve core constitutional functions of the President.

No Court has ever held that "Executive privilege" extends anywhere near as far as the Attorney General here contends that it does.  Indeed, it is no exaggeration to say that the Attorney General's conception of the reach of "Executive privilege," were it to be accepted, would cripple congressional oversight of Executive branch agencies, to the very great detriment of the Nation and our constitutional structure.  Accordingly, the Committee asks this Court to reject the Attorney General's assertion of "Executive privilege" and order him forthwith to comply with the Committee's subpoena, as set forth below.

Compl. at page 3.  

Recall that AG Holder urged the assertion of the privilege based on "executive branch deliberative communications"--supported, AG Holder argued, by several DOJ and OLC opinions (including DOJ advice, authored by Paul Clement, in the Bush administration relating to the assertion of executive privilege in the congressional investigation on the politicization of the Justice Department).  See Holder Memo at 2-3.  

The privilege dispute thus centers on whether the President himself had to be part of the communications--or whether the communication had to be in relation to advice to the President--or whether the privilege applies more broadly over "executive branch deliberative communications" that did not involve the President directly.

In the D.C. court's last foray into this and similar issues, in a similar case involving above-mentioned congressional investigations into the politicization of the Justice Department, Committee on the Judiciary v. Miers, Judge John D. Bates ruled that the Committee jumped the several significant hurdles to get the case into court and that White House Counsel Harriet Miers did not have absolute immunity from testifying before Congress.  (The case was stayed pending appeal and resolved itself by agreement of the parties in January 2009.)  

But while Judge Bates's opinion dealt at length with (and ultimately rejected) the defendants' claimed barriers to the Committee's suit, it did not resolve the executive privilege issues presented in this case.

Miers may provide useful guidance, though, for a more pragmatic reasons: The D.C. Circuit in that case declined to put the appeal on the fast track, suggesting that the case could become moot when the 110th Congress, along with its subpoenas, expired.  

This case, like that one, will not reach final judicial resolution (and maybe even not a district court ruling) before the end of the current Congress.  The case could fizzle out--that is, moot out, because the subpoena will have expired with the current Congress--when the new Congress comes in . . . unless the new House reauthorizes it.

SDS

Ninth Circuit Says No Waiver of Sovereign Immunity in Case Challenging TSP

In the latest and perhaps last chapter of the Al-Haramain case, the Ninth Circuit ruled that the government did not unequivocally waive sovereign immunity through the Foreign Intelligence Surveillance Act civil liability provision, ending the plaintiffs' case challenging the government's terrorist surveillance program.

As the court said, "[t]his case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization."  Op. at 8784.

Recall that the plaintiffs sued under the FISA's civil liability provision for damages resulting from the government's surveillance of them through the TSP.  Most recently, the district court ruled that the state secrets privilege did not foreclose the plaintiffs' suit--that "FISA preempts or displaces the state secrets privilege . . . in cases within the reach of its provisions"--and that the government implicitly waived sovereign immunity through FISA.  The district court ruling would have allowed the case to move forward.

But the Ninth Circuit stopped it.  The court ruled that the government did not unequivocally waive sovereign immunity through the FISA civil damages provision, and therefore the plaintiffs could not sue for damages from the government.

The FISA civil damages provision, 50 U.S.C. Sec. 1810, reads,

An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation . . . .

For the court, the key missing phrase was "the United States" (as in "against the United States" or "the United States shall be liable")--a mainstay of statutes in which the government unequivocally waived sovereign immunity.  Without such an unequivocal waiver, the government cannot be sued for damages.

Even with the government off the hook, though, the plaintiffs still could have proceeded against FBI Director Mueller, another defendant in the action (and a "person" under 50 U.S.C. Sec. 1810).  But the court said that the plaintiffs "never vigorously pursued its claim against Mueller" and dismissed it.  Op. at 8797.

The case almost certainly puts an end to the plaintiffs' litigation efforts to hold the government responsible for the TSP.

SDS

Sixth Circuit Says Pastors Lack Standing to Challenge Hate Crime Law

A three-judge panel of the Sixth Circuit ruled in Glenn v. Holder that a group of pastors who "say that homosexuality is 'forbidden by God'" lacked standing to challenge the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act.

The Act makes it a crime to batter a person because of the person's religion, national origin, gender, sexual orientation, gender identity, or disability.  18 U.S.C. Sec. 249(a)(2)(A).  The plaintiffs claimed that the expression and practice of their anti-gay religious beliefs would lead to federal prosecution under the Act in violation of their First Amendment rights.

The court rejected the claim for lack of standing, saying that "this lawsuit is really a political statement against the Hate Crimes Act."  Op. at 1.  The court:

Quite simply, we agree with the district court that Plaintiffs have not established standing because they have not alleged any actual intent to "willfully cause[] bodily injury," the conduct proscribed by the Act.

Op. at 5.  The court noted that the Act didn't prohibit the plaintiff's proposed speech and concluded that the plaintiffs therefore couldn't say just what they might do that would subject them to prosecution.  The court also rejected for similar reasons the plaintiffs' theory that they might be subject to prosecution for aiding or abetting a violation of the Act and the plaintiffs' theory that the Act chills their speech.

Judge Stranch concurred in full but wrote separately to say why the plaintiffs' claims based on legislative history and statements by federal prosecutors failed to support their chilled-speech argument.

SDS

Catholic College Lacks Standing to Challenge ACA's Contraception Requirement

Judge James E. Boasberg (D.D.C.) ruled in Belmont Abbey College v. Sebelius that a Catholic college lacked standing to sue HHS over its regulations under the Affordable Care Act that require health insurance plans to cover contraceptives.  The problem: HHS said that it would reconsider the regs and look for other alternatives to provide contraceptive coverage, and so the case sounds more than a little like a pre-enforcement challenge.  In other words, the government's working on it, and Belmont's suit will have to wait.

The ruling comes just two months after forty-three Catholic institutions filed 12 separate suits in a high-profile, coordinated move challenging the regulations.  (Belmont filed its suit much earlier, in November 2011, arguing that the regs violated the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.)  The ruling here will certainly influence the direction of those cases, even if it won't necessarily dictate the direction of those cases.

Current HHS regs, enacted under the ACA, require health insurance plans to provide contraceptive services starting August 1, 2012.  But the regs exempt religious organizations who meet these four criteria:

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.

In response to criticism, HHS added a "safe harbor" period through February 10, 2012, for "certain non-exempted, non-profit organizations with religious objections to covering contraceptive services."  Moreover, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM) on March 21, 2012, indicating that it would seek ways to "accommodat[e] non-exempt, non-profit religious organizations' religious objections to covering contraceptive services," while "assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing."

Belmont argued that it didn't qualify for an exemption, that the safe harbor provision only delayed the implementation of the contraceptive requirement, and that the new Rulemaking provided no certain exemption and, in any event, would lead to a similar harm.

Judge Boasberg agreed that Belmont didn't qualify for an exemption (as did the government) and that the safe harbor provision only delayed the harm (and therefore didn't deny Belmont standing).  But he concluded that HHS's ANPRM provided enough certainty that HHS was seriously examining a solution to the problem so as to deny Belmont standing.  From the ruling:

Plaintiff argues that non-binding promises of future rulemaking cannot defeat standing.  Contrary to the Plaintiff's assertions, however, Defendants have done more than simply "open another docket to propose addressing related matters."  They have published their plan to amend the rule to address the exact concerns Plaintiff raises in this action and have stated clearly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends.  Not only that, but Defendants have already initiated the amendment process by issuing an ANPRM.  The government, moreover, has done nothing to suggest that it might abandon its efforts to modify the rule--indeed, it has steadily pursued that course--and it is entitled to a presumption that it acts in good faith.

Op. at 15.

Judge Boasberg also ruled that the case was not ripe, for similar reasons.

SDS

Chicken Farmers' Challenge to EPA Standards Doesn't Cluck

A three-judge panel of the D.C. Circuit ruled in National Chicken Council v. EPA that the plaintiff's challenge of new EPA standards for renewable fuel wasn't justiciable, because a even a favorable ruling wouldn't redress the plaintiff's alleged injuries.

The case arose out of new EPA regs for renewable fuels, including (sometimes) ethanol, under the Energy Independence and Security Act of 2007.  That law grandfathered ethanol production plants that were in construction before December 19, 2007, but also said that "[f]or calendar years 2008 and 2009, any ethanol plant that is fired with natural gas, biomass, or any combination thereof is deemed to be in compliance . . . with the [new EISA standards]."  EPA said that the clause was ambiguous because it did "not specify whether [ethanol plants fired with natural gas and/or biomass]are deemed to be in compliance only for the period of 2008 and 2009, or indefinitely."  But it adopted the latter interpretation.

The Chicken Council sued, arguing that this will drive up ethanol production, thus driving up corn demand, thus increasing the price of corn, thus increasing the price of chicken farmers' feed.  The Council argued that the narrower interpretation--the former one--wouldn't have this effect.

The court didn't buy it.  It ruled that the Council failed to show a "substantial probability" that qualifying ethanol plants would reduce their ethanol production if the court ruled in the plaintiff's favor--that is, if the plants were subject to the narrower interpretation of the grandfather clause.  This was a simple matter of proof (or the petitioner's lack of proof); the court explained:

True, the EPA claimed in the Final Rule that "many of the current technology corn ethanol plants may find it difficult if not impossible to retrofit existing plants to comply with the [new regs]," and that "[g]iven the difficulty of meeting such threshold, owners of such facilities could decide to shut down the plant."  But that statement referred to all grandfathered plants, not just the qualifying ethanol plants, and there are good reasons to think the qualifying ethanol plants will find it much easier than the other, older grandfathered plants to meet the emissions-reduction requirement should they have to.  

The petitioners also cite several comments ethanol producers submitted during the rulemaking proceedings.  These comments assert it would be difficult to retrofit ethanol plants to meet the emissions-reduction requirement, but the comments do not satisfy the petitioners' burden of proof for one of two reasons: they are either not specific to qualifying ethanol plants, or they do not claim ethanol plants would be forced to shut down or reduce production if they had to coply with [the new standards].

Op. at 5-6.  The court said that the Council didn't produce the kind of evidence that supported standing in Duke Power Co. v. Carolina Environmental Study Group--the principal case that the Council relied on.  The Court in Duke Power held that a district court was not clearly erroneous in concluding that the plaintiffs showed a "substantial likelihood" of harm, where congressional testimony, legislative findings, and testimony in that case all pointed to harm, causation, and redressibility.  

SDS

Suit Seeks Damages for Targeted Killing

The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program.  The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.

The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place.  Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions.  (Judge Bates didn't rule on the government's state secrets claim.)

The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).

All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.

The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.

We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts).  We still don't have a complete legal justification from the government for the targeted killing program.

SDS

Florida Judge Overturns "Medical Privacy Concerning Firearms" Act

Judge Marcia Cook (S.D. Fl.) last week ruled in Wollschlaeger v. Farmer that the Florida's law restricting health care providers from asking whether a patient owns a firearm violates free speech.  The ruling permanently enjoins the state from enforcing four provisions of the act and from disciplining health care providers who violate them.  We posted on the case previously--when Judge Cook granted a preliminary injunction--here.

The ruling is a blow to state efforts to restrict health care providers from talking and asking patients about gun ownership.  But the ruling makes clear that any worries about discrimination against gun owners was based on only the thinnest actual evidence.  (In other words, the law protected against something that didn't exist--at least in any widespread, systematic way.)  Thus, this case isn't a ruling on a clash between First and Second Amendment rights--because the state failed to show that there was any real interference with Second Amendment rights driving the law.  This is a pure free speech case, and the state's stated interests just don't hold up.

A group of doctors and health care providers brought the case challenging Florida's ban--which prohibits doctors and health care providers from talking or asking patients about firearms ownership.  The plaintiffs claimed that the law chilled their speech about preventive health issues.  Judge Cook agreed.  The state's biggest problem, according to Judge Cook, was that it didn't show that the law was tailored to meet any particular problem--that the state failed to show that there was any widespread infringement on the right to bear arms or any widespread discrimination against gun owners by health care providers.

Florida Statutes 790.338 provides:

(1) A health care practitioner . . . or a health care facility . . . may not intentionally enter any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or to the safety of others.

(2) A health care practitioner . . . or a health care facility . . . shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.  Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.

. . .

(5) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.

(6) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.

After ruling that the plaintiffs had standing to challenge these four provisions of the law, and that the challenge was ripe, Judge Cook ruled that these provisions violated the First Amendment.  She wrote that the provisions were content-based restrictions on speech, subject to strict scrutiny; that they were a ban on (especially protected) truthful, non-misleading speech; and that the state's interests didn't stand up.

The state said that it had interests in protecting patients' Second Amendment rights, protecting patients' access to health care in the face of discrimination (against those who own firearms), protecting patients' privacy rights, and regulating professionals.  

But Judge Cook ruled that the state couldn't show any widespread infringement on patients' Second Amendment rights, access, or equal treatment.  The law was based entirely on a handful of anecdotes.  Moreover, the law itself contains protections for patients--for example, allowing them not to answer questions about firearms ownership.  The state's interests, Judge Cook ruled, were therefore insufficient to withstand strict scrutiny analysis.

They were also insufficient to withstand a less rigorous balancing under Gentile v. State Bar of Nevada, a case setting the free speech bar lower when a state seeks to regulate a lawyer's speech.

Judge Cook also ruled that two clauses were unconstitutionally vague: "relevant to the patient's medical care or safety, or the safety of others"; and "unnecessarily harassing."  Those phrases, she said, do not give sufficient guidance to health care providers as to what speech is covered and what speech is not.

SDS

Supreme Court Upholds Affordable Care Act

A sharply divided Supreme Court today upheld key provisions in the Affordable Care Act (the "ACA," or Obamacare).  The upshot is that five Justices (Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan) held that universal coverage (or the individual mandate) is upheld, and that a three-Justice plurality (Chief Justice Roberts and Justices Breyer and Kagan) held Medicaid expansion is upheld in a somewhat weaker form.  A different five Justices (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) held that the commerce clause did not support universal coverage (but for different reasons).

The ruling means that universal coverage stands, and Medicaid expansion stands, although in a somewhat weaker form.

Our analyses of oral arguments are here, here, and here.  We'll have more analysis of the opinion; here's just a breakdown of the holding.

Chief Justice Roberts wrote for the majority; by issue:

Taxing Clause.  A five-Justice majority held that Congress could enact the universal coverage provision (also called the individual mandate) under the taxing authority.  Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, wrote that the tax penalty for failing to purchase health insurance was a valid tax.  

First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.  It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the "prohibitory" financial punishment in Drexel Furniture.  Second, the individual mandate contains no scienter requirement.  Third, the payment is collected solely by the IRS through the normal means of taxation--except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution.

Op. at 35-36.  The majority was untroubled that the tax penalty could be a "tax" for taxing authority purposes, but a non-"tax" for Anti-Injunction Act purposes: Chief Justice Roberts wrote that Congress itself enacted the AIA and could therefore itself draft around it (which it did here); but Congress's taxing authority may support congressional action whether or not Congress calls its action a "tax."

Justices Scalia, Kennedy, Thomas, and Alito dissented, arguing that universal coverage exceeded the taxing power.

Commerce Clause.  A five-Justice majority concluded that the Commerce Clause did not support congressional authority to enact universal coverage, but for two different reasons.  Chief Justice Roberts, writing for himself alone, wrote that universal coverage amounted to regulating before entrance into the market for health services--i.e., regulating someone who's "inactive."  (And Chief Justice Roberts didn't buy the government's claim that the maarket for health insurance was integrally connected to the market for health care.)  Chief Justice Roberts wrote that universal coverage was unprecedented and unsupported by the Court's cases.  (Chief Justice Roberts justified reaching the issue--even though the case could be (and was) decided on the taxing power alone--because, he said, the government designed universal coverage first as a regulation and only secondly (or alternatively) as a tax.)

Justices Scalia, Kennedy, Thomas, and Alito took a harder line, arguing that Congress here went too far, because it first sought to create commerce, and then to regulate it.

Medicaid Expansion.  Chief Justice Roberts wrote for himself and Justices Breyer and Kagan that Medicaid expansion as-is under the ACA--in which a state declining to participate in Medicaid expansion would stand to lose its entire pot of federal Medicaid money--was unduly coercive.  But the same plurality held that Medicaid expansion could be saved by simply reading the statute to mean that a declining state could lose only the additional federal money that would have come with the expansion.

Justices Ginsburg and Sotomayor wrote separately to argue that Medicaid expansion as-is under the ACA did not violate the Constitution.

Justices Scalia, Kennedy, Thomas, and Alito dissented, writing that Medicaid expansion was flatly unconstitutional.

SDS

D.C. Circuit Rejects Torture Suit Against Rumsfeld

A three-judge panel of the D.C. Circuit today rejected a U.S. citizen's Bivens action against former Defense Secretary Donald Rumsfeld for developing, authorizing, and implementing policies that led to his torture while in U.S. custody in Iraq.  The panel, following an earlier similar ruling from the Fourth Circuit, Lebron v. Rumsfeld, held that special factors counseled against a Bivens remedy--special factors "pertaining to military, intelligence, and national security."

The ruling comes on the heels of the Supreme Court's rejection of the plaintiffs' cert. petition in Lebron and while a similar suit is now pending before the en banc Seventh Circuit.  (A three-judge panel of the Seventh Circuit earlier ruled that the plaintiffs in that case did have a Bivens remedy against Rumsfeld.)

The case means that U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials in the D.C. Circuit, even when the violations resulted from torture while in U.S. custody.  With two circuit rulings now on the books--this case, Joe Doe v. Rumsfeld, and Lebron--and with a Seventh Circuit ruling against the plaintiffs now all but certain, and with the Supreme Court's rejection of cert. in Lebron, it now seems all but certain that other circuits faced with the question will follow suit, and that therefore U.S. citizens won't have a civil damage action for constitutional violations against U.S. officials anywhere.

The case also gives extraordinary authority to the executive to evade suits for detention and mistreatment--even torture--of U.S. citizens.  Congress, of course, could change this by authorizing such suits.  But don't look for that to happen anytime soon--or ever.

The D.C. Circuit ruling closely follows the Fourth Circuit's earlier ruling.  That is, the court today ruled that the "special factors" of military, intelligence, and national security foreclose a civil damage remedy for constitutional violations by U.S. citizens.  Here's the court's special factor analysis:

In his complaint, Doe challenges the development and implementation of numerous military policies and decisions.  The complaint would require a court to delve into the military's policies regarding the designation of detainees as "security internees" or "enemy combatants," as well as policies governing interrogation techniques.

Doe's allegations against Secretary Rumsfeld implicate the military chain of command and the discretion Secretary Rumsfeld and other top officials gave to [military] agents to detain and question potential enemy combatants.  The allegations raise questions regarding Secretary Rumsfeld's personal control over the treatment and release of specific detainees.  Litigation of Doe's case would require testimony from top military officials as well as forces on the ground, which would detract focus, resources, and personnel from the mission in Iraq.  And . . . allowing such an action would hinder our troops from acting decisively in our nation's interest for fear of judicial review of every detention and interrogation.

Op. at 10-11.

The court also found persuasive--another "special factor" counseling against a Bivens remedy--that Congress did not authorize such suits under the Detainee Treatment Act, or any other statute.  

Because the court ruled against Doe on Bivens, it did not rule on Rumsfeld's defense of qualified immunity.

SDS